Like a reliable and familiar friend, BVI litigators have been accustomed to the Eastern Caribbean Supreme Court Rules (“the CPR”) for a considerable period. They ﬁrst came into force on 31 December 2000. The CPR, as their title suggests, apply not only in the BVI, but in the other 9 countries and territories within the Eastern Caribbean Supreme Court system. Given its bespoke practice and needs, the BVI Commercial Court also has its own particular practice rules and directions which supplement and, where appropriate, amend the default CPR as required.
During their existence, the CPR have undergone, it is fair to say, only modest and occasional amendment. It was recognised some time ago by the Chief Justice that any modern system for the administration of justice must update and renew itself. Accordingly, an extensive review of the rules was undertaken. Each of the constituent jurisdictions appointed a subcommittee to share its views and the whole process was coordinated in order to produce a revised set of rules (“the Amended CPR”).
On 31 July 2023, the Amended CPR will apply in each of the Member States and Territories of the Eastern Caribbean Supreme Court, including the Territory of the Virgin Islands (BVI). The Amended CPR will apply to all proceedings commenced after 1 July 2023 (subject to transitional provisions). The Conyers litigation team has produced a series of articles covering major changes to the CPR relevant to our areas of practice and our clients’ interests. They will be listed and accessible below. Meanwhile, this concise introduction is aimed to acquaint readers with the key amendments that clients and legal practitioners with interest in the BVI should keep on the radar.
The signiﬁcance of the Amended CPR coming into force is that with eﬀect from 31 July 2023 the originally adopted Eastern Caribbean Supreme Court Rules 2000 (CPR 2000) are repealed. CPR 2000 will continue to apply to the proceedings commenced before 31 July 2023 (inclusive). All practice directions and practice guides made under the CPR 2000 will also continue to apply until they are speciﬁcally amended or replaced in accordance with the Amended CPR. In this respect it is worth noting that the rules include reference to a possible issue of a practice direction setting out the standard form for a freezing order: a matter that many have advocated for over several years.
Perhaps one of the most drastic (and dare we say controversial) and most far-reaching amendment aﬀecting foreign persons with (or without) interest in the BVI relates to abolishment of a requirement to seek permission to serve court process out of jurisdiction in speciﬁed proceedings. After 31 July 2023 a claimant will be able to serve court process out of jurisdiction without permission of the Court subject to complying with certain conditions. The proceedings must be one of the speciﬁed type; service must be made by a prescribed method and must be accompanied by a certiﬁcate for service out of jurisdiction conﬁrming the proceedings qualify to be served without a permission of the Court. Signiﬁcantly, the CPR clariﬁes that the abolishing of the requirement to seek permission of the Court to serve out of jurisdiction applies to the notice of application and an interim order pending issue of a claim form. In addition, under the Amended CPR, the list of speciﬁed proceedings expressly includes court process for a relief in aid of foreign proceedings. In eﬀect this reform reverses the burden of proof from the Claimant to the foreign defendant. A brave move, it may be considered.
Another important improvement relates to the rules regarding case management of notices of application. The new rules clarify the time limits for response and reply to a notice of application and introduce a new requirement to ﬁle a notice of opposition. Importantly, the rules require that the application be listed for hearing not less than 7 days after the date of ﬁling the evidence in reply. Furthermore, the Court’s powers have been clariﬁed to include a power to strike out an application that does not disclose a reasonable ground for bringing an application, or is an abuse of process, or is likely to obstruct the just disposal of the proceedings. These are very welcomed changes aimed at speeding up the court procedure.
The Amended CPR also introduces the concept of the “judicial settlement conference” which is intended to promote the early disposition of cases. This is a conﬁdential hearing during which the judge may assist the parties in evaluating the merits of the dispute and may also provide an evaluation or an opinion of the likely outcome of the dispute. The judge may, with the parties’ consent, direct the parties to attempt to settle their dispute by mediation, arbitration or other alternative dispute resolution mechanism.
In addition, the new rules clarify that the Court of Appeal has discretion to dispense with the rules regarding the timeline of the appeal and hear the case on an expedited basis. The rules set out the matters that the court may take into account in considering whether the appeal should be expedited. This is often an issue for urgent commercial appeals.
Electronic ﬁling and service have been available in the jurisdiction since 2018. The new CPR 5A on electronic ﬁling and service procedure eﬀectively adopts the respective guidelines that have been tested and proven to be eﬀective.
A speciﬁc provision of interest in the commercial sphere of litigation is a new and useful rule that sets out obligations of third parties served with a provisional order and lists information that the bank or a ﬁnancial institution must disclose to the court and the judgment creditor upon service of the order.
Last but not least is an inclusion in the CPR of an express prohibition to rely on a foreign document disclosed in the proceedings unless the document is accompanied by a certiﬁed translation into English.
The Amended CPR, together with the availability of the BVI International Arbitration Centre, cements the position of the BVI as a forward looking jurisdiction.
The above summary is intended to touch base on the key amendments, which will be further developed in the coming series of articles on the following topics:
- General Matters, Case Managements Powers, Electronic Filing and Service Procedure, Inspection.
- Arbitration and ADR Procedure
- Service Out of Jurisdiction